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Research - Nishith Desai

Copyright 2018 Nishith Desai Associates India s Law on Prevention of Sexual Harassment at the WorkplaceFebruary 2018 MUMBAI SILICON VALLEY BANGALORE SINGAPORE MUMBAI BKC NEW DELHI MUNICH NEW YORK Nishith Desai Associates 2018 India s Law on Prevention of Sexual Harassment at the WorkplaceIndia s Law on Prevention of Sexual Harassment at the WorkplaceFebruary Nishith Desai Associates 2018 Provided upon request only Nishith Desai Associates 2018 India s Law on Prevention of Sexual Harassment at the WorkplaceContents1. INTRODUCTION 012. EVOLUTION OF THE LAW ON WORKPLACE SEXUAL HARASSMENT 02I.

less of an irony, the POSH Act and the POSH Rules was enacted 16 years after the Vishaka Judgement. In the absence of a specific law in India, the Supreme Court, in the Vishaka Judgment, laid down certain guidelines making it mandatory for every employer to provide a mechanism to redress grievances pertaining to workplace sexual harassment

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Transcription of Research - Nishith Desai

1 Copyright 2018 Nishith Desai Associates India s Law on Prevention of Sexual Harassment at the WorkplaceFebruary 2018 MUMBAI SILICON VALLEY BANGALORE SINGAPORE MUMBAI BKC NEW DELHI MUNICH NEW YORK Nishith Desai Associates 2018 India s Law on Prevention of Sexual Harassment at the WorkplaceIndia s Law on Prevention of Sexual Harassment at the WorkplaceFebruary Nishith Desai Associates 2018 Provided upon request only Nishith Desai Associates 2018 India s Law on Prevention of Sexual Harassment at the WorkplaceContents1. INTRODUCTION 012. EVOLUTION OF THE LAW ON WORKPLACE SEXUAL HARASSMENT 02I.

2 The Vishaka Judgement 02II. Post Vishaka Some Other Judgments 033. KEY PROVISIONS OF THE POSH ACT 05I. Applicability and scope 05II. What amounts to Sexual Harassment? 06 III. Employee 07IV. Workplace 07V. Complaints committee 08VI. Complaint mechanism 10 VII. Conciliation 11 VIII. Redressal process/Inquiry 11IX. Interim Reliefs 12X. Punishment and compensation 12XI. Frivolous complaints 12 XIl. Confidentiality 13 XIII. Consequences of non-compliance 134. EMPLOYER S DUTIES AND OBLIGATIONS 145. EXAMPLES OF CONDUCT AMOUNTING TO SEXUAL HARASSMENT 166. OTHER LAWS PERTAINING TO WORKPLACE SEXUAL HARASSMENT 17I. Industrial Employment (Standing Orders) Act, 1946 17II. Indian Penal Code, 1860 177.

3 FREQUENTLY ASKED QUESTIONS 19 ANNEXURE I 20 Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) ACT, 2013 [Act No. 14 of 2013] ANNEXURE II 34 Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 Nishith Desai Associates 2018 Provided upon request only Nishith Desai Associates 2018 India s Law on Prevention of Sexual Harassment at the WorkplaceANNEXURE III 38 Hotline: Court decides not to interfere with decision of Internal Complaints Committee set up by employer ANNEXURE IV 41 Sexual Harassment Committee - Time for a Change! ANNEXURE V 42 Bombay Chartered Accountant Society PublicationANNEXURE VI 45 Sexual Harassment at Workplace: Indian Government Introduces Platform for Female Employees to File Complaints Nishith Desai Associates 2018 Provided upon request only Nishith Desai Associates 2018 India s Law on Prevention of Sexual Harassment at the Workplace11.

4 IntroductionLong bygone are the days when men used to be the sole bread-winners of a family. Globalization has brought a radical change in the status of women worldwide. However, with the larger influx of women in the mainstream workforce of India, sexual harassment at workplace has assumed greater dimensions. Workplace sexual harassment is a form of gender discrimination which violates a woman s fundamental right to equality and right to life, guaranteed under Articles 14, 15 and 21 of the Constitution of India ( Constitution ). Workplace sexual harassment not only creates an insecure and hostile working environment for women but also impedes their ability to deliver in today s competing world.

5 Apart from interfering with their performance at work, it also adversely affects their social and economic growth1 and puts them through physical and emotional suffering. India s first legislation specifically addressing the issue of workplace sexual harassment; the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 ( POSH Act ) was enacted by the Ministry of Women and Child Development, India in 2013. The Government also subsequently notified the rules under the POSH Act titled the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 ( POSH Rules ). The year 2013 also witnessed the promulgation of the Criminal Law (Amendment) Act, 2013 ( Criminal Law Amendment Act ) which has criminalized offences such as sexual harassment, stalking and Statement of Objects and Reasons, Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, POSH Act has been enacted with the objective of preventing and protecting women against workplace sexual harassment and to ensure effective redressal of complaints of sexual harassment.

6 While the statute aims at providing every woman (irrespective of her age or employment status) a safe, secure and dignified working environment, free from all forms of harassment, proper implementation of the provisions of the statute remains a challenge. Although the law preventing sexual harassment at workplace has been in force since 2013, there remains lack of clarity on various aspects pertaining to the statute, including what constitutes sexual harassment, obligations of an employer, remedies/safeguards available to the victim, procedure of investigation, etc. Many are also not fully aware of the criminal consequences of sexual harassment. Lewd jokes, inappropriate comments etc.

7 Are dismissed as normal, with women being hesitant to initiate actions due to apprehension of being disbelieved or ridiculed; which underpins the need for greater awareness and greater enforcement. Any tool would be useless if the person operating it is unaware of the way it is to be used. Therefore, the objective of this booklet is to serve as a ready reckoner to all the stakeholders and re-educate them on the law relating to workplace sexual harassment. This booklet focusses mainly on the POSH Act and other relevant laws in India pertaining to workplace sexual harassment. Further, the objective of this booklet is to create more awareness on the issue and simultaneously equip employers in providing women a safe and secure working environment.

8 The booklet also discusses the importance of prevention as the best tool for elimination of this menace in a multi-cultural society as upon request only Nishith Desai Associates 201822. Evolution of The Law on Workplace Sexual HarassmentThe elimination of gender-based discrimination has been one of the fundamentals of the Constitutional edifice of India. The principle of gender equality is enshrined in the Constitution, in its Preamble, fundamental rights, fundamental duties and Directive Principles. However, workplace sexual harassment in India, was for the very first time recognized by the Supreme Court of India in its landmark judgment of Vishaka v. State of Rajasthan2 ( Vishaka Judgment ), wherein the Supreme Court framed certain guidelines and issued directions to the Union of India to enact an appropriate law for combating workplace sexual harassment.

9 Nothing less of an irony, the POSH Act and the POSH Rules was enacted 16 years after the Vishaka Judgement. In the absence of a specific law in India, the Supreme Court, in the Vishaka Judgment, laid down certain guidelines making it mandatory for every employer to provide a mechanism to redress grievances pertaining to workplace sexual harassment ( Vishaka Guidelines ) which were being followed by employers until the enactment of the POSH The Vishaka JudgementIn 1992, Bhanwari Devi, a dalit woman employed with the rural development programme of the Government of Rajasthan, was brutally gang raped on account of her efforts to curb the then prevalent practice of child This incident revealed the hazards that working women were exposed to on a day to day basis and highlighted the urgency for safeguards to be implemented in this regard.

10 Championing the cause of working 2. 1997 6 SCC 241: AIR 1997 SC 30113. Indira Jaising, Law Relating to Sexual Harassment at the Workplace (2014)women in the country, women s rights activists and lawyers filed a public interest litigation in the Supreme Court of India under the banner of Vishaka. The Supreme Court of India, for the first time, acknowledged the glaring legislative inadequacy and acknowledged workplace sexual harassment as a human rights violation. In framing the Vishaka Guidelines, the Supreme Court of India placed reliance on the Convention on Elimination of All Forms of Discrimination against Women, adopted by the General Assembly of the United Nations, in 1979, which India has both signed and ratified.